Research On Patent Malicious Litigation And Its Judicial Regulation

In 2 0 11,the Supreme Court formally established “ malicious prosecution of intellectual property lawsuits for damages” as a first-tier cause of action,and in2012,the principle of honesty and credit was formally incorporated into the Civil Procedure Law,which also expressly prohibits both parties from maliciously colluding to harm the rights and interests of others in litigation.However,so far there is no legislation specifically targeting malicious litigation by one party,and there are no measures in the Patent Law to regulate infringement lawsuits brought by the patentee against others in bad faith.How to accurately to identify the perpetrator of patent malicious prosecution “malicious”,how to urge the perpetrator to correctly exercise their rights,to give full protection to the infringed,is the process of patent malicious prosecution law enforcement must be resolved.At present,the State has achieved certain results of the regulation of patent malicious prosecution,but there are still imperfections in the identification standard of“malicious”,the damages of the accused infringer and other systems for the relief of the legitimate rights and interests of the accused infringer.By analyzing the basic problems of patent malicious prosecution and the current situation of judicial practice,we can explore the problems of the current judicial system and provide suggestions to curb patent malicious prosecution.Chapter 1: An overview study of the Judicial regulation of patent malicious prosecution.This paper draws on the useful results of experts and scholars’ research on patent malicious litigation,expounding the concept of patent malicious litigation,identifying it as an infringement act that is prosecuted knowingly without reasonable grounds,summarizing the characteristics and types of patent malicious litigation according to the current state ofjudicial practice,analyzing the causes of patent malicious litigation,combining with the constituent elements of common tort,the article deeply discusses the judgment elements of patent malicious action.Finally,it shows that patent malicious litigation does not have the benefit of litigation,which is an abuse of rights against the principle of honesty and credit,resulting in the imbalance of interests of all parties,so it must be regulated judicatively.Chapter 2: Study on the current status of the Judicial regulation of patent malicious litigation.Since the case of Yuan Lizhong,patent malicious prosecution has been repeatedly prohibited.Through combing the legal basis of regulating patent malicious litigation,it is found that there is no uniform adjudication standard,and there is no legal basis of regulating patent malicious litigation under the current legal system,which leads to conflicting results of court decisions.In judicial practice,judges mostly invoke the principle of good faith and credit and adopt the path of tort liability law to adjudicate cases,which makes it difficult to compensate for the losses of the accused infringers.Chapter 3: Examines the problems of the Judicial regulation of patent malicious prosecution.Through the analysis of the basic problems of patent malicious prosecution and the in-depth investigation of the current status of the judicial system,it is found that the court cannot make full use of the function of pre-trial procedures before the formal trial proceedings,the judge lacks the right to judicial review of the validity of the patent in question,resulting in the case entering the trial proceedings;and in the process of trial the judge does not accurately define whether the perpetrator has subjective “ In the process of trial,the judges were unable to accurately define whether the perpetrators had subjective “ malice” and did not know what factors to refer to when determining “malice”;the punishment for the perpetrators of malicious patent litigation was insufficient after the case was concluded.In addition,the court’ s examination procedure of the pre-litigation injunction application is not sound,and the interests of the accused infringer cannot be fully protected after the injunction is made;there are also limitations in the applicability of actions to confirm non-infringement of patent rights.These specific problems need to be solved as soon as possible.Chapter 4: Research on optimizing Judicial regulation path of patent malicious litigation.This part of the judicial practice of patent malicious prosecution for the problems that exist,it pertinently puts forward five specific measures: to specify the identification elements of subjective “malicious” elements,to improve the counterclaim system of patent malicious litigation,to strengthen the judge’s function of examining patent malicious litigation procedure,and to strengthen the procedural guarantee of the accused infringer in the injunction before suing,and to improve the litigation system of non-infringement of patent rights.